For SUPERINTENDENT, SCI SOMERSET, THE ATTORNEY GENERAL OF THE STATE OF PENNSYLVANIA, THE DISTRICT ATTORNEY OF PHILADELPHIA COUNTY, Respondents: JENNIFER O. ANDRESS, PHILADELPHIA DISTRICT ATTORNEY'S OFFICE, PHILADELPHIA, PA; THOMAS W. DOLGENOS, DISTRICT ATTORNEY'S OFFICE, PHILADELPHIA, PA.

REPORT AND RECOMMENDATION

THOMAS J. RUETER, United States Magistrate Judge.

Presently before the court is a counseled petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. Petitioner is incarcerated in the State Correctional Institution located in Somerset, Pennsylvania. For the reasons that follow, the court recommends that the petition be denied.

I. BACKGROUND AND PROCEDURAL HISTORY

On May 28, 1999, a jury sitting in the Court of Common Pleas of Philadelphia County convicted petitioner of attempted murder, aggravated assault, possession of an instrument of crime and carrying a firearm without a license. Commonwealth v. Robinson, No. CP- 51-CR-1106081-1998, slip op. at 3 (C.P. Phila. Dec. 7, 2004). The trial court set forth the following account of the events underlying petitioner's convictions:

On October 30, 1998, at approximately 7:30 p.m., the victim, Mr. Kenneth Glenn, went to the home of Ms. Nina Lester, located at 1315 North 75th Street, Philadelphia, Pennsylvania. (Notes of Testimony (hereinafter referred to as " N.T."), May 24, 1999, 39, 83[.)] His purpose was to purchase a $20 bag of cocaine. However, when he arrived, he rang the wrong doorbell. A woman on the first floor, Ms. Sandra Pullett, answered the door and told him she did not think anyone was home in the apartment upstairs. Id. 40-43, 64. Appellant, Ms. Pullett's paramour, was in her apartment at this time. Id. [at] 88.

Mr. [Glenn] testified that he apologized and went back to his car to smoke a cigarette, and await the arrival of Ms. Lester. Id. [at] 43-44. Appellant came out of the apartment and approached Mr. Glenn. He ordered Mr. Glenn out of the vehicle and Mr. Glenn complied. Appellant then ordered Mr. Glenn to " give me your money." Id. at 44-45. When the victim resisted, appellant pulled a gun from his waist area and shot the victim in the stomach. Id. [at] 45. The appellant then punched Mr. Glenn in the face with the gun. The resulting injuries to his face consisted of a " split open eye", four " knocked out teeth", and a broken jaw. Id. at 46, 59, 60. Mr. Glenn tried to climb back into the car and honk the horn for help, but he was again accosted by appellant, who attempted to shoot him in the head. Id. at 54. The victim raised his left hand in defense and received a gunshot wound to the hand. Id. at 45-46. Appellant took the victim's wallet and fled back toward Ms. Pullett's apartment. Id. at 46. The victim was able to climb back into his vehicle and drive away. Near a West Coast Video Store, in the vicinity of 75th Street and Haverford Avenue, he stopped his vehicle and asked a person offering him assistance to call the police.

When police arrived at the scene of the incident, they found the victim's bloody jacket and a bloody $20 dollar bill lying in the driveway of the apartment complex. Officers arrested the appellant in Ms. Pullett's apartment. In the apartment they found appellant's blood-stained clothes and the gun used to shoot the victim. N.T., 5/25/04, 30-34, 42-43, 50-51.

Petitioner executed the instant counseled petition for a writ of habeas corpus on November 13, 2013 and filed it on November 27, 2013, along with a memorandum of law (" Pet'r's Mem., " Doc. No. 1). Petitioner raises seven claims for habeas relief. First, in claims 1 through 4, petitioner asserts four instances of ineffective assistance of counsel: (1) trial counsel's failure to use a videotape which would have shown the jury the crime scene, the line of sight of eyewitness Marla Oliver, and the lighting at the time of the crime, id. at 20-23; (2) trial counsel introduced petitioner's prior conviction through the use of character witnesses, id. at 23; (3) sentencing counsel's failure to object to and appeal the imposition of consecutive sentences because they were unsupported by a jury verdict, id. at 23-24; and (4) trial counsel's errors, in the aggregate, led to the denial of a fair trial, and appellate counsel and PCRA counsel were ineffective for failing to include this combination of errors issue in the PCRA petition, id. at 24-25.

In his fifth habeas claim, petitioner alleges a due process violation resulting from three categories of prosecutorial misconduct: (1) repeatedly and erroneously emphasizing that the gun at issue had to be cocked each time before it was discharged, id. at 25-26; (2) calling the defense strategy " outrageous" and " desperate acts" and calling defense witness Ms. Pullett a " liar; " and (3) giving personal comments on the evidence and personal opinions on the credibility of witnesses, id. at 26. In his sixth habeas claim, petitioner contends a " denial of due process when the judge declined to charge the jury on the law of self-defense/justification." Id. at 26-35. Finally, in his seventh habeas claim, petitioner maintains that the trial court deprived him of due process by imposing consecutive sentences for attempted murder and aggravated assault based on facts not found by the jury. Id. at 35-36.

Respondents filed a response to the habeas petition on August 22, 2014, arguing that the petition should be denied because petitioner's claims are procedurally defaulted and/or meritless (" Resp., " Doc. No. 11). On September 19, 2014, petitioner filed a reply in support of his habeas petition (" Pet'r's Reply, " Doc. No. 14). The court received the state court record from the trial and appellate courts on February 20, 2014. The record thus constituted, the court now addresses petitioner's habeas claims. For the reasons detailed forth below, the habeas petition should be denied.

II. DISCUSSION

A. Habeas Corpus Standards

Petitioner's habeas petition is governed by the Antiterrorism and Effective Death Penalty Act of 1996 (" AEDPA"). The provisions of the AEDPA relevant to the instant matter provide as follows:

(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim -

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d)(1) and (2).

The Supreme Court has instructed that the " contrary to" and " unreasonable application" clauses in Section 2254(d)(1) should be viewed independently. Williams v. Taylor, 529 U.S. 362, 404-05, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). With respect to Section 2254(d)(1), a federal habeas petitioner is entitled to relief under the " contrary to" clause only if " the state court arrives at a conclusion opposite to that reached by this Court on a question of law or if the state court decides a case differently than this Court has on a set of materially indistinguishable facts." Id. at 413. The Court in Williams was careful to note that most cases will not fit into this category, which is limited to direct and unequivocal contradiction of Supreme Court authority. Id. at 406-08.

Under the " unreasonable application" clause, " [a] state court decision will be an 'unreasonable application' if (1) 'the state court identifies the correct governing legal rule from [the] Court's cases but unreasonably applies it to the facts of the particular . . . case; ' or (2) 'the state court either unreasonably extends a legal principle from our precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply.'" Appel v. Horn, 250 F.3d 203, 209 (3d Cir. 2001) ( quoting Williams, 529 U.S. at 407). A federal habeas court may not issue the writ simply because that court concludes " that the relevant state-court decision applied clearly established federal law erroneously or incorrectly."
Williams, 529 U.S. at 411. Relief is appropriate only where the state court decision also is objectively unreasonable. Id. See also Waddington v. Sarausad, 555 U.S. 179, 190, 129 S.Ct. 823, 172 L.Ed.2d 532 (2009) (same). The Third Circuit Court of Appeals recently described this " highly deferential standard" as follows: " we will not surmise whether the state court reached the best or even the correct result in [a] case; rather, we will determine only 'whether the state court's application of [federal law] was unreasonable.'" Collins v. Sec'y of Pa. Dep't of Corr., 742 F.3d 528, 544 (3d Cir. 2014).

With respect to 28 U.S.C. § 2254(d)(2), which dictates that federal habeas relief may be granted when the state court adjudication was based on an unreasonable determination of the facts in light of the evidence presented, the petitioner must demonstrate that a reasonable fact-finder could not have reached the same conclusions given the evidence. If a reasonable basis existed for the factual findings reached in the state courts, then habeas relief is not warranted. Campbell v. Vaughn, 209 F.3d 280, 290-91 (3d Cir. 2000), cert. denied, 531 U.S. 1084, 121 S.Ct. 789, 148 L.Ed.2d 685 (2001).

Additionally, " a determination of a factual issue made by a State court shall be presumed to be correct. The applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e)(1). See Collins, 742 F.3d at 544 (claims adjudicated by state court on the merits subject to " highly deferential review"). See also Burt v. Titlow, 134 S.Ct. 10, 15, 187 L.Ed.2d 348 (2013) (same); Appel, 250 F.3d at 209 (same).

A federal habeas court may not consider a petitioner's claims of state law violations, but must limit its review to issues of federal law. See Estelle v. McGuire, 502 U.S. 62, 67-68, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991) (not the province of the federal court to re-examine a state court's determinations on state law questions); Pulley v. Harris, 465 U.S. 37, 41, 104 S.Ct. 871, 79 L.Ed.2d 29 (1984) (" A federal court may not issue the writ on the basis of a perceived error of state law."); Engle v. Isaac, 456 U.S. 107, 120 n.19, 102 S.Ct. 1558, 71 L.Ed.2d 783 (1982) (" If a state prisoner alleges no deprivation of a federal right, § 2254 is simply inapplicable."); Johnson v. Rosemeyer, 117 F.3d 104, 110 (3d Cir. 1997) (" [E]rrors of state law cannot be repackaged as federal errors simply by citing the Due Process Clause.").

B. Exhaustion and Procedural Default

The respondents allege that several of petitioner's claims are unexhausted and procedurally defaulted. The exhaustion doctrine requires that a prisoner present all of his claims to a state's intermediate court, as well as to its supreme court, before a district court may entertain a federal petition for habeas corpus. 28 U.S.C. § 2254(b)(1)(A); O'Sullivan v. Boerckel, 526 U.S. 838, 845, 847, 119 S.Ct. 1728, 144 L.Ed.2d 1 (1999); Rolan v. Coleman, 680 F.3d 311, 317 (3d Cir.), cert. denied, 133 S.Ct. 669, 184 L.Ed.2d 475 (2012).[1] " The exhaustion requirement ensures that state courts have the first opportunity to review federal constitutional challenges to state convictions and preserves the role of state courts in protecting federally guaranteed rights." Caswell v. Ryan, 953 F.2d 853, 857 (3d Cir.), cert. denied, 504 U.S. 944, 112 S.Ct. 2283, 119 L.Ed.2d 208 (1992). To satisfy the exhaustion requirement, a petitioner must demonstrate that the claim raised in the federal petition was " fairly presented" to the state courts. Duncan v. Henry, 513 U.S. 364, 365-66, 115 S.Ct. 887, 130 L.Ed.2d 865 (1995) (quoting Picard v. Connor, 404 U.S. 270, 275, 92 S.Ct. 509, 30 L.Ed.2d 438 (1971)). Petitioner must show that " the claim brought in federal court [is] the substantial equivalent of that presented to the state courts. Both the legal theory and the facts supporting a federal claim must have been submitted to the state courts." Lesko v. Owens, 881 F.2d 44, 50 (3d Cir. 1989) (citations omitted), cert. denied, 493 U.S. 1036, 110 S.Ct. 759, 107 L.Ed.2d 775 (1990).

" The doctrine of procedural default prohibits federal courts from reviewing a state court decision involving a federal question if the state court decision is based on a rule of state law that is independent of the federal question and adequate to support the judgment." Fahy v. Horn, 516 F.3d 169, 187 (3d Cir. 2008) (citing Nara v. Frank, 488 F.3d 187, 199 (3d Cir. 2007)). Procedural default occurs when a state court determines that " the prisoner . . . failed to meet a state procedural requirement." Coleman v. Thompson, 501 U.S. 722, 730, 111 S.Ct. 2546, 115 L.Ed.2d 640 . . . (1991).

Collins, 742 F.3d at 540. Upon a finding of procedural default, review of a federal habeas petition is barred unless the habeas petitioner can show " (1) the procedural rule was not independent and adequate; (2) cause for his failure to comply with state procedural rules and prejudice resulting therefrom; or (3) that a fundamental miscarriage of justice will occur if not considered." [2] Peterkin v. Horn, 176 F.Supp.2d 342, 353 (E.D. Pa. 2001) (citations omitted).[3]

C. Petitioner's Claims

Claims 1 - 4. Ineffective Assistance of Counsel

Claim 7. Trial Court Error - Consecutive Sentences

Petitioner's first four claims assert ineffective assistance of counsel. Claim 7 is related to Claim 3. To establish a claim of ineffective assistance of counsel, a petitioner must show both deficient performance and prejudice. Harrington v. Richter, 562 U.S. 86, 131 S.Ct. 770, 178 L.Ed.2d 624 (2011); Premo v. Moore, 562 U.S. 115, 131 S.Ct. 733, 178 L.Ed.2d 649 (2011); Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In Strickland, the Supreme Court set forth a two prong test that a petitioner must satisfy before a court will find that counsel did not provide the effective assistance of counsel guaranteed by the Sixth Amendment. Under this test, a petitioner must show: (1) that counsel's performance was deficient; and (2) counsel's deficient performance caused the petitioner prejudice. Id. at 687-96. The United States Supreme Court observed that " [s]urmounting Strickland's high bar is never an easy task." Premo, 131 S.Ct. at 739 (quotation omitted). See also Collins, 742 F.3d at 544 (discussing Strickland); Ross v. District Attorney of the County of Allegheny, 672 F.3d 198, 209-10 (3d Cir. 2012) (same).

To show deficient performance, a petitioner must show " that counsel's representation fell below an objective standard of reasonableness" and that " counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Strickland, 466 U.S. at 687-88. In evaluating counsel's performance, a reviewing court should be " highly deferential" and must make " every effort . . . to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time." Id. at 689. Moreover, there is a " strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action 'might be considered sound trial strategy.'" Id. (citation omitted). The Court cautioned that the appropriate " question is whether an attorney's representation amounted to incompetence under 'prevailing professional norms, ' not whether it deviated from best practices or most common custom."
Premo, 131 S.Ct. at 740 ( quoting Strickland, 466 U.S. at 690).

The United States Supreme Court explained the prejudice requirement for an ineffective assistance of counsel claim as follows:

With respect to prejudice, a challenger must demonstrate " a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." It is not enough " to show that the errors had some conceivable effect on the outcome of the proceeding." Counsel's errors must be " so serious as ...

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